The Oakes Test
Revisited:
Balancing Prisoner’s vs. Societies Rights
Minds On!
Do you think inmates in federal prisons should retain their
democratic rights (see section 3 in the Charter) while
incarcerated?
What if: An inmate in a federal institution has claimed the right
to run for public office (in an election). See section 3- what
arguments could the government use to reject such a claim?
Sauve vs Canada (Chief Electoral Officer)
• 1991 Richard Suave, serving a life sentence for 1st degree
murder, challenged the Canada Elections Act, s. 51
• S. 51 states that all inmates serving sentences are denied the
right to vote. Sauve claimed this violated sections 3 and 15 of
the Charter
• The SCC agreed and declared the offending section
unconstitutional
Sauve vs Canada (Chief Electoral Officer)
• Parliament responded by amending the act in section 51 (e) to read
only prisoners serving two years or more would be disqualified from
voting
• 1995 Sauve challenged the limitation (in a Superior Court) and again
was successful but the Federal Court of Appeal overturned ittherefore Sauve appealed to the SCC
• In a 5-4 decision the SCC ruled that any infringement on a prisoner’s
right to vote could not be justified (could not be reasonably limited)
• “The right to vote is fundamental to our democracy and the Rule of
Law and cannot be lightly set aside”
• The 4 dissenting judges argued that the act infringing their rights
was a reasonable limit because it is logical to deny a citizen’s rights
temporarily if they infringe on societies morals
The Oakes Test
• 1. Does the Charter Apply?
• 2. Has there been an infringement or a violation? If so, what sections of the Charter have been
infringed?
• 3. Proportionality: Is the infringement reasonable?
a. Is there a pressing or substantial reason for the law? Is there a reason we have an Elections Act?
b. Are the measures employed by the law reasonable and justified under the circumstance? Are the
provisions in section 51 reasonable under the circumstance?
c. Can it be proven there is a rational connection between the purpose of the law and the
limitation? What is the objective of section 51 of the Canada Elections Act? Is there a rational
connection to that and denying a prisoner his right to vote?
d. Does the limitation minimally affect one’s rights? Does section 51 limit a prisoner’s rights in as
minimal manner as possible?
• 4. Decision. The Supreme Court of Canada finds that the limitation on a prisoner’s right to vote
is/is not justified in a free and democratic society.
Sauve
• Feel free to research information to help you with your Oakes
Test
• Search exactly for Sauve vs. Canada…
• You are being marked on your ability to follow the Oakes Test
format and whether you can elaborate and explain the
purpose and objective of the act and whether it can be
justified in our society